IN THE CASE OF:	  

		BOARD DATE:	       24 March 2009

		DOCKET NUMBER:  AR20090000619 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge under other than honorable conditions be upgraded to honorable or general under honorable conditions.

2.  The applicant states, in effect, that his discharge was a grave error which has precluded entitlement to veteran benefits.

3.  The applicant provides, in support of his application, two letters from his spouse; a letter from his sister-in-law; a letter from the Vice President – Sales and Marketing, Sherrill Furniture; and a letter from a pastor, Pocket Presbyterian Church, Sanford, NC. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  On 1 May 1978, the applicant enlisted in the Regular Army.  He served through a series of reenlistments and attained the rank of sergeant (SGT), pay grade E-5 on 5 May 1986.  He was awarded military occupational specialty (MOS) 76C (Equipment Records and Parts Specialists).

3.  The applicant served a tour of duty in the Federal Republic of Germany from 
6 July 1982 to 5 July 1988.  He returned to the United States for duty at Fort Carson, Colorado.

4.  On or about 7 February 1990, the applicant was assigned for duty with the 23rd Support Group in the Republic of Korea.  He was subsequently reassigned to the 802nd Engineer Battalion.

5.  On 12 October 1990, charges were preferred under the Uniform Code of Military Justice (UCMJ).  The applicant was charged with one specification of impersonating a staff sergeant (SSG), pay grade E-6; one specification of making a fraudulent claim; and one specification of presenting a false claim, in violation of Articles 134 and 132, UCMJ, respectively.  On 19 October 1990, the convening authority referred these charges for trial by a special court-martial empowered to adjudge a bad conduct discharge.

6.  On 3 December 1990, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

8.  On 3 December 1990, the separation authority approved the applicant’s request for discharge and directed that he be discharged under other than honorable conditions.  On 19 December 1990, the applicant was discharged 


accordingly.  He had completed a total of 12 years, 7 months, and 19 days of creditable active military service.

9.  On 27 October 1995, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

11.  The UCMJ provides for a maximum punishment of a punitive discharge and confinement for 5 years for impersonation and frauds against the United States.

12.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  The applicant's wife wrote two letters of support stating, in effect, that the applicant was mentally tormented into signing a request for discharge for the good of the Army.  She further states that they served in the Federal Republic of Germany for 6 years where they received poor medical care that has caused her, the applicant, and their children to suffer from disability, seizures, and slowed growth.  She contends that the military lawyers told the applicant that there was nothing to worry about.  Then just before the court-martial, he was told that he would get 5 years in jail if he did not request an administrative discharge.


15.  The applicant's sister-in-law wrote a letter of support stating, in effect, that he is an honest man who would not dishonor himself or his family.  

16.  A friend and employer of the applicant wrote a letter of support stating, in effect, that the applicant was a dedicated individual who was willing to do whatever was required or asked without hesitation.  He further stated that the applicant was a good, decent, honest, hard working man.  He would make anyone a good employee and would always be as concerned for the company as he is for himself.

17.  The applicant's church pastor wrote a letter of support stating, in effect, that he was a committed husband and father of two daughters.  He further stated that the applicant was conscientious about the jobs he has held.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge was a grave error that has precluded him from receiving veteran benefits.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.  

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  The applicant's voluntary request for a chapter 10 discharge, even after appropriate and proper consultation with military counsel, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

5.  There is no available evidence of record to corroborate the applicant's claims of poor quality medical care as addressed in the letters of support.  Furthermore, he has not shown how the quality of their medical care contributed to his subsequent misconduct.  

6.  The applicant's record of good service is greatly diminished by the special court-martial that he received and is outweighed by the circumstances of the discharge.  Accordingly, he has not provided evidence and/or sufficiently mitigating argument to warrant an upgrade of his discharge.
7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090000619



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ABCMR Record of Proceedings (cont)                                         AR20090000619



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